Opinion
J-S46023-18 No. 1832 EDA 2017
10-15-2018
COMMONWEALTH OF PENNSYLVANIA v. JOSEPH C. VIGNOLA, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order April 27, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0012131-2008 BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J. MEMORANDUM BY SHOGAN, J.:
Appellant, Joseph C. Vignola, appeals from the order denying his petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546. We affirm.
The PCRA court summarized the relevant facts of this case as follows:
[Appellant] was enrolled as an Emergency Medical Technician student at Jefferson University Hospital in May of 2008. After class one day, [Appellant] asked an instructor to explain how to slice someone's throat. A few days later, [Appellant] went onto Craig's List's 'erotic services' on the internet and found the phone number of a young prostitute. [Appellant] arranged to meet Ms. India Brown at a motel on City Avenue in Philadelphia. Following sex an argument ensued and [Appellant] punched the young woman in the throat, knocking her to the floor. [Appellant] sat on the girl's chest until she was no longer breathing. Feeling no pulse, [Appellant] pulled out a knife and slit the woman's throat, got dressed, stole the money he had paid her and left the motel, leaving the young woman for dead. (N.T. 9-20-10, pp. 12-13, 17). Motel employees found the unconscious girl and called police rescue. Ms. Brown was rushed into surgery at Jefferson Hospital
where, miraculously, the doctors were able to repair her wounds and save her life. (N.T. 9-20-10, pp. 13-17).
Police detectives interviewed [Appellant] the next day wherein he claimed that Brown had been attacked by [a third-party,] a twenty year old bald black male with facial hair, approximately two hundred and forty pounds. (N.T. 9-20-10, pp. 17-23, 28-29). [Appellant] submitted to a polygraph test the following day, which he failed. [Appellant] then gave another statement to the detectives, again describing the same black male, but in this version, contended that he was in the room but [this other man ordered Appellant] to hold the victim on the ground while that [other] man slit Brown's throat. [Appellant] further claimed that after the black male left the room he checked the victim's pulse and finding none, left the motel. (N.T. 9-20-10, pp. 12-14). Following the second statement, [Appellant's] parents arrived at the police station. After being allowed to consult with his parents, [Appellant] gave a third statement confessing that he was the sole perpetrator of the attack on the young girl. [Appellant] admitted that he discarded the knife a short distance away from the motel. Police recovered the used condom from the motel room, which matched [Appellant's] DNA.
A motion to suppress was heard and denied by the trial court and four months later [Appellant] entered an open plea to the charges of aggravated assault, unlawful restraint and possession of the instruments of a crime.
The original sentencing hearing was held on November 3, 2010. The court had reviewed the pre-sentence investigation report [("PSI")], a mental health evaluation and sentencing memoranda from both sides. Ms. Brown provided victim impact and the parties stipulated to testimony that less than ten hours before the attack, [Appellant] had questioned his paramedic instructor [about] breaking and cutting someone's neck. (N.T. 11-3-2010, pp. 6-9, 22-23). The Commonwealth asked for a sentence of twelve to twenty-four years because of the heinousness of the crime; the fact that [Appellant] planned the crime, including asking his paramedic instructor how to inflict the wounds he exacted; that he left the young woman on the motel floor to die; and his repeatedly lying to the police. [Appellant] presented the
testimony of a licensed clinical psychologist, Dr. Steven Samuel, who diagnosed [Appellant] as having an adjustment disorder with symptoms of post-traumatic disorder, which was attributed to atrocious events allegedly suffered while attending Valley Forge Military Academy. (N.T. 11-3-2010, pp. 65-66, 143-145). According to Dr. Samuel, [Appellant] had told him that while at school he had been physically and psychologically abused. Dr. Samuel recounted the events at school that he believed to be the root of [Appellant's] Post-traumatic Stress Disorder (hereinafter referred to as "PTSD") and mental illness: [Appellant] told the doctor that cadets threw him down a flight of stairs and broke his ankle which needed a cast; that upon his return to school [Appellant] claims that other students put Vaseline on the stairway railing preventing [Appellant] from ascending or descending the stairway; that they urinated on his person and belongings; and that he was beaten so badly that ... he needed to go to the infirmary several times due to having blood in his urine and several other incidents. The one event that [Appellant] relayed to Dr. Samuel that was sufficient to be the cause of his PTSD was when the cadets threw him out of a third story window. (N.T. 11-3-2010, pp. 55-96, 123-126; Dr. Samuel's report, pp. 6-7). The doctor opined that this was the only event that was traumatic enough to [Appellant] to cause his PTSD. Dr. Samuel ran a battery of tests and came to the diagnoses that [Appellant] suffered from ADHD and adjustment disorder, and displayed symptoms of PTSD. The doctor stated that although [Appellant] did not meet the current diagnosis of PTSD, he had the symptoms as of the date of the testing, and that he believed [Appellant] had PTSD at the time [of] the slashing of the young woman's throat, and that [Appellant] still had residual symptoms of the disorder. (N.T. 11-3-2010, pp. 65-69, 70-77, 106-108). Accordingly, Dr. Samuel opined that [Appellant] should not be imprisoned, but sent to a mental health program, preferably at Gaudenzia House.
[Appellant's] mother testified as to the trauma her son endured as a result of the events at Valley Forge, although the tales were quite different than what [Appellant] told Dr. Samuel. (N.T. 11-3-2010, pp. 55-96). Lastly, at the sentencing hearing, [Appellant] read a prepared statement, but was not subjected to questioning by either the prosecutor or the sentencing judge.
The trial court credited [Appellant's] contention that he suffered from PTSD, reiterated that the sentencing guidelines were fifty-four to seventy-two months and that the guidelines
were appropriate. However, the judge sentenced [Appellant] to twenty-four to forty-eight months incarceration followed by ten years' probation. (N.T. 11-3-2010, pp. 154-15[9]).
The Commonwealth filed a motion for reconsideration on November 12, 2010, which was granted and a hearing was scheduled for March 2, 2011. Counsel stipulated to the authenticity of several documents, including [Appellant's] medical records from Bryn Mawr Hospital and Valley Forge Military Academy as well as copies of the email communications between [Appellant's] parents and the school. (N.T. 3-2-2011, pp. 2-4). The prosecution argued that those documents unequivocally proved that [Appellant] and his mother had lied to both the court and Dr. Samuel; that [Appellant] had not been thrown out of a third-story window, had not been put in a cast, nor had he suffered the other allegedly traumatizing events at Valley Forge Military Academy he had claimed. As such, the Commonwealth argued, the diagnosis that at the time [Appellant] slit Brown's throat he suffered from PTSD and that he still had symptoms of that disorder was baseless, ergo the court's reason for imposing a mitigated sentence was negated.
[Appellant's] counsel asked to again present the testimony of Dr. Samuel but the court continued the matter to review the documents presented by the prosecution, remarking that she had given [Appellant] four to eight years thinking he suffered from PTSD. (N.T. 3-2-2011, pp. 11, 30-31). The matter resumed on March 8, 2011. At that time, the prosecutor asked to admit the documents, to which defense counsel objected, moving to strike them from the record. The objection was overruled, [and] the motion [was] denied. (N.T. 3-8-2011, pp. 3-5). The court
disclosed that she had read all of the previously submitted documents and provided the parties copies of a report from the Department of Corrections, including the results of psychological testing of [Appellant].PCRA Court Opinion, 9/5/17, at 2-7.
Dr. Samuel again testified for the defense, admitting that the psychological findings by the Department of Corrections did not substantiate a finding of PTSD. Dr. Samuel further conceded that [Appellant] did not suffer from PTSD and that his prior conclusion was as a result of the information provided to him by [Appellant] and his family. The doctor did however testify that he had visited [Appellant] while incarcerated as well as reviewed his prison medical records and described for the court the lack of any counselling or treatment, a lack of any consistent medication and essentially that the prison setting [Appellant] was being subjected to was not rehabilitation in any sense. (N.T. 3-08-2011, pp. 8-13). Additionally, letters from Ms. Caroline Dupont and her son, Justin Maverick Kerakov, were submitted concerning abuse the son had suffered at Valley Forge Military Academy. Although specifically given the opportunity to address the court, [Appellant] elected not to say anything.
The judge vacated the sentences, noted that the guidelines called for a sentence of six to twelve years' incarceration, and addressed [Appellant's] presentation of false and misleading information to the court as well as to Dr. Samuel, the particular viciousness of the crime, the callousness of leaving the young woman with her throat slashed to die as well as [Appellant's] need for rehabilitation. (N.T. 3-8-2011, pp. 29-32). Accordingly, the court imposed a sentence of four to sixteen years' incarceration on the charge of aggravated assault, two and one-half to five years' incarceration for possessing the instrument of a crime and two and one-half to five years for unlawful restraint, all consecutive to one another for an aggregate sentence of nine to twenty-six years of incarceration.
18 Pa.C.S. §§ 2702(a)(1), 2902(a)(1), and 907(a), respectively.
Although the notes of testimony reveal that the Honorable Renee Cardwell Hughes did say "four to eight years," this was a misstatement. As noted above and reflected in the record, Judge Cardwell Hughes originally sentenced Appellant to twenty-four to forty-eight months of incarceration followed by ten years of probation. N.T. 11/3/10, at 159.
As this Court noted in our decision on Appellant's direct appeal, although Appellant's counsel ultimately objected, the objection was on the second day of the hearing, long after the trial court had considered the documents in question. Thus, this Court deemed the untimely objection waived. Commonwealth v. Vignola , 53 A.3d 937, 921 EDA 2011 (Pa. Super. filed June 22, 2012) (unpublished memorandum at 10), appeal denied, 64 A.3d 632, 360 EAL 2012 (Pa. 2012).
On March 30, 2011, Appellant filed a timely appeal with this Court. On June 22, 2012, this Court affirmed Appellant's judgment of sentence, and the Pennsylvania Supreme Court denied allowance of appeal on April 10, 2013. Commonwealth v. Vignola , 53 A.3d 937, 921 EDA 2011 (Pa. Super. filed June 22, 2012) (unpublished memorandum), appeal denied, 64 A.3d 632, 360 EAL 2012 (Pa. 2013).
Appellant timely filed a counseled PCRA petition on April 3, 2014. On August 31, 2015, counsel filed an amended PCRA petition. The PCRA court held evidentiary hearings on Appellant's petition in February of 2017. On April 27, 2017, the PCRA court denied Appellant's PCRA petition. This timely appeal followed. On appeal, Appellant presents the following issue for this Court's consideration: "Whether the Post-Conviction Relief Act Court erred when it found that sentencing counsel provided effective assistance of counsel during the resentencing proceedings[?]" Appellant's Brief at 4.
When reviewing the propriety of an order denying PCRA relief, we consider the record in the light most favorable to the prevailing party at the PCRA level. Commonwealth v. Mason , 130 A.3d 601, 617 (Pa. 2015). This Court is limited to determining whether the evidence of record supports the conclusions of the PCRA court and whether the ruling is free of legal error. Commonwealth v. Robinson , 139 A.3d 178, 185 (Pa. 2016).
When considering an allegation of ineffective assistance of counsel, we presume that counsel provided effective representation unless the PCRA petitioner pleads and proves that: (1) the underlying claim is of arguable merit; (2) counsel had no reasonable basis for his action or inaction; and (3) petitioner was prejudiced by counsel's action or omission. Commonwealth v. Johnson , 179 A.3d 1105, 1114 (Pa. Super. 2018) (citing Commonwealth v. Pierce , 527 A.2d 973, 975-976 (Pa. 1987)). "An [ineffective-assistance-of-counsel] claim will fail if the petitioner's evidence fails to meet any one of the three prongs." Commonwealth v. Simpson , 66 A.3d 253, 260 (Pa. 2013). Because courts must presume that counsel was effective, the burden of proving ineffectiveness rests with the petitioner. Commonwealth v. Montalvo , 114 A.3d 401, 410 (Pa. 2015). Additionally, to be eligible for relief under the PCRA, Appellant must also establish that the issues raised in the PCRA petition have not been previously litigated or waived. 42 Pa.C.S. § 9543(a)(3). The PCRA court's findings will not be disturbed unless there is no support for them in the certified record. Commonwealth v. Lippert , 85 A.3d 1095, 1100 (Pa. Super. 2014).
Appellant was initially sentenced to a term of twenty-four to forty-eight months of incarceration, followed by ten years of probation. N.T., 11/3/10, at 154-158. However, the Commonwealth filed a motion for reconsideration of Appellant's sentence. At hearings on the motion, the Commonwealth introduced evidence that refuted Appellant's claim of PTSD and established that Appellant and his mother had lied to Dr. Samuel and the trial court. N.T., 3/2/11, at 6-30; N.T., 3/8/11, at 6-32. Although Appellant's argument on appeal is vague and conclusory, part of his assertion appears to be that counsel was ineffective for failing to challenge the admissibility of those documents.
However, in his direct appeal, Appellant challenged the admissibility of the documents evidencing Appellant's and his mother's untruthful statements. After finding Appellant's challenge to the admissibility of documents waived for failing to object, this Court provided the following alternative holding:
Furthermore, the sentencing court found the evidence to be within the scope of the post-sentence motion, which specifically raised the issue of unsupported leniency. The leniency in question was based solely on the evidence regarding hazing and PTSD, which was the evidence refuted by the Commonwealth. Moreover, Appellant could not claim that he was surprised by the evidence. Prior to the hearing, the Commonwealth supplied Appellant's counsel with the documentation and Appellant stipulated to its authenticity. Dr. Samuel was present in court on March 2, 2011, and Appellant intended to offer his testimony at that time. However, the court continued the hearing so that it could review the documents, which also afforded the defense the benefit of additional time to address their contents.
The purpose of Pa.R.Crim.P. 720[,] formerly Rule 1410[,] is to give the trial court the first opportunity to modify sentence and to give the appellate court the benefit of the trial court's views. Commonwealth v. Anderson , 450 A.2d 1011 (Pa.Super. 1982); Commonwealth v. Broadie , 489 A.2d 218, 220 (Pa.Super. 1985). The same rationale applies to Pa.R.Crim.P. 721, which requires that the Commonwealth file a post-sentence motion to preserve its challenge to a discretionary aspect of a defendant's sentence. Herein, the motion was sufficiently specific to apprise Appellant and the court that the Commonwealth believed the sentence was too lenient in light of the circumstances surrounding commission of the crime. The purpose of the evidentiary hearing was to adduce additional facts. To that end, evidence that Appellant and his mother provided false information to Dr. Samuel, which the psychologist relied upon in rendering his opinion that Appellant demonstrated symptoms of PTSD, was
properly admitted. In addition, evidence that Appellant falsified such information was probative as to his character and clearly within the scope of the Commonwealth's motion requesting that the court reconsider the guidelines and general sentencing principles. We find no abuse of discretion.Vignola , 53 A.3d 937, 921 EDA 2011 (unpublished memorandum at 10-12).
Because this Court ruled that the documents supporting the trial court's order granting reconsideration were admissible, that decision is law of the case. See Commonwealth v. Reed , 971 A.2d 1216, 1220 (Pa. 2009) ("[W]here a decision rests on two or more grounds equally valid, none may be relegated to the inferior status of obiter dictum."). In other words, where this Court has issued a decision stating that even if the issue was not waived, it is meritless, that alternate basis is a valid holding and the law of the case. Id. Therefore, even if Appellant's counsel had objected, the documents would have been admitted and considered by the trial court. Thus, Appellant's claim is meritless, and it is well settled that counsel cannot be deemed ineffective for failing to raise a meritless claim. Commonwealth v. Tilley , 595 A.2d 575, 587 (Pa. 1991).
What remains in Appellant's brief is a conglomeration of claims that counsel failed to consult with Appellant prior to resentencing and abandoned Appellant in order to rehabilitate Dr. Samuel as opposed to advocating for Appellant. Appellant's Brief at 11-30. After review, we conclude that the PCRA court thoroughly addressed these claims of error, and we affirm on the basis of that opinion. PCRA Court Opinion, 9/5/17.
We are cognizant that the sentencing judge, the Honorable Renee Cardwell Hughes, retired from the bench and that the PCRA court opinion was drafted by the Honorable J. Scott O'Keefe.
The parties are directed to attach a copy of the PCRA court's opinion in the event of future proceedings.
We expound on the PCRA court's opinion only to underscore that Appellant has not established prejudice. The original sentence was imposed when the trial court believed that there were mitigating factors including PTSD. After the Commonwealth's motion for reconsideration was granted, the trial court admitted new evidence uncovering Appellant's dishonesty, and these documents vitiated the earlier mitigation and leniency. See Vignola , 53 A.3d 937, 921 EDA 2011 (unpublished memorandum at 11) ("The leniency in question was based solely on the evidence regarding hazing and PTSD, which was the evidence refuted by the Commonwealth."). As discussed above, this Court concluded that the documents were admissible and were the sole basis upon which Appellant was resentenced. There is nothing in Appellant's brief that establishes there was any evidence, argument, or advocacy that could have altered the trial court's decision once it was revealed that Appellant and his mother had lied about his PTSD. Accordingly, Appellant cannot establish prejudice, and therefore, his claim fails. Johnson , 179 A.3d at 1114.
For the reasons set forth above, we conclude that no relief is due. Accordingly, we affirm the order denying Appellant's PCRA petition.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/15/18
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